Bilderbeek v Puxu Pty Ltd and Resolat Pty Ltd [1997] ACTSC 39 (3 June 1997)

SUPREME COURT OF THE ACT

BILDERBEEK v. PUXU PTY LTD and RESOLAT PTY LTD
No. SC748 of 1993
Number of pages - 12
Negligence - Causation damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GALLOP J

CATCHWORDS

Negligence - breach of statutory duty - action for damages for personal injuries due to collapse of chair - judgment for the plaintiff - no new question of principle.

Causation damages - general and special damages due to the injuries sustained - no new question of principle.

The Corporations Law 1996 (Cth), s574(3)

Sale of Goods Act 1954

Rules of Court, O39 r47

HEARING

CANBERRA, 30 April and 2 May 1997 (hearing), 3 June 1997 (decision)

3:6:1997

Counsel for the Plaintiff: Mr G Lunney

Instructing solicitors: Barker & Barker

Counsel for the Defendant: Mr P Morris

Instructing solicitors: Deacons Graham & James

ORDER

THE COURT ORDERS THAT:

There be judgment for the plaintiff in the sum of $15,737.45.

DECISION

GALLOP J

1. By writ of summons issued 17 November 1993, the plaintiff instituted proceedings against the defendants for damages for personal injuries sustained in an accident on 21 December 1987. Eventually, the plaintiff abandoned the proceedings against the first defendant and proceeded against the second defendant only. The second defendant had been deregistered by the time the action came on for hearing on 30 April 1997 and, on the application of the plaintiff, I made an order for the re-instatement of the registration of the second defendant pursuant to s574(3) of The Corporations Law 1996 (Cth). The application for re-instatement was not opposed by the second defendant.

2. The plaintiff's cause of action arose out of the collapse of a single seat Cajun Concept Lounge manufactured by the second defendant. The plaintiff was a retailer of furniture conducting a business from premises in Fyshwick in the Australian Capital Territory and the subject chair had been supplied to her by the second defendant pursuant to a franchise agreement with the plaintiff.

3. The plaintiff's case was that when she sat on the chair, the seat of the chair failed to support her weight and the plaintiff fell to the floor suffering injuries.

4. By its defence, the second defendant admitted that it manufactured the chair and supplied it to the plaintiff, but otherwise did not admit the allegations made by the plaintiff in the statement of claim.

5. I turn to the plaintiff's evidence in respect of the collapse of the chair. She said that on the day of the incident, a family had come into the store looking for furniture for a member of the family who had arthritis. They tried all the chairs, except the one that collapsed, but found nothing suitable and left the store. The plaintiff said that she was curious as to why they had not been able to find anything suitable and it was in those circumstances that she tried the chair which collapsed. She sat in the chair and, as she did so, the seat gave way on the front of the chair causing her to fall on the concrete floor with her legs over the frame at the front of the chair and the seat of the chair in a vertical position behind her.

6. She claimed to have suffered pain in the neck, back and left leg. She rang the office of the second defendant to tell the second defendant what had happened and spoke to one Wayne Breen. He said she should speak to Peter Ryan which she did and told him what had happened. There had been two prior incidents when chairs had collapsed and customers had complained. Those chairs were sent back to the second defendant. The plaintiff tendered in evidence copies of two letters which she had written to the second defendant in respect of those incidents.

7. After the subject incident, she spoke to a Director of the second defendant. She said that he was very apologetic and told her to go to a chiropractor and that the second defendant would pay the chiropractor's costs. The particular chair was never returned to the plaintiff's premises.

8. The plaintiff was cross-examined about the circumstances of the incident when she suffered injuries and maintained her version of the incident. There was no evidence to the contrary on behalf of the defendant. I am satisfied on the balance of probabilities that the chair collapsed and accordingly, there must be judgement for the plaintiff for the negligence of the second defendant in supplying to the plaintiff a defective chair and for breach of the Sale of Goods Act 1954 in that the chair was not reasonably fit for the purpose for which it was supplied.

Damages

9. The plaintiff was born on 5 April 1943 (54 years of age at the date of trial). She claimed in evidence that before the accident her health had been very good. She said that she was physically active and in the course of running her shop she would shift furniture with the help of her son Robert, and suffered no disability.

10. After the subject incident on 21st December 1987, she visited her chiropractor within an hour because of pain in the neck, lower back, left arm and left shoulder. Treatment by the chiropractor made no difference at all. So she took two weeks off work. During that time, she felt very badly with lots of pain. She kept seeing the chiropractor but was not getting any better. She thought in evidence that she saw several doctors. Other evidence established that she saw Dr Peter Gibson, a general practitioner, on 9 February 1988 complaining of low back pain, headaches and neck stiffness which she stated had been particularly bad since she fell through the chair at work.

11. A report from Dr Gibson was in evidence. He states therein that the examination on 9 February 1988 revealed good range of neck movements with some pain in the neck with extreme rotation to the right. Movement did not reproduce her symptoms of pain down the left arm. He detailed the other results of his examination. Her back also showed good range of movement with normal neurological examination. Her chiropractic x-rays showed a straight neck with loss of normal lordosis but an increased lumbar lordosis. There were minor degenerative changes only.

12. Dr Gibson noted that on 15 February she had complained of being unable to continue her business, partly due to her neck and back pain and also due to financial difficulties. She was advised to rest by her chiropractor, and Dr Gibson concurred with that advice, with the additional suggestion of avoiding high heels, using hot packs and gentle exercises.

13. On 23 March, she complained to Dr Gibson of low back pain referred to the left hamstring. Other symptoms involved intermittent tingling in the left arm and hand. Physical examination was again fairly normal. She was by then working as a real estate agent which she found very difficult. It involved her being on her feet a lot of her time, climbing stairs and driving motor vehicles.

14. She said much the same in evidence about those difficulties as a real estate agent. In May 1988, she stopped seeing the chiropractor.

15. On 13th April, she returned to Dr Gibson to say that medication that he had prescribed had not helped and she was still having low back pain and pain between the shoulder blades.

16. In his undated report in evidence, Dr Gibson stated that it was hard to accurately assess the plaintiff's condition because he had not been involved in managing her back problems very much in the past. He noted that in July 1987, she had also complained of pain in the neck and between the shoulder blades with tests for auto immune arthritis at the time being normal. He thought it reasonable to say that her symptoms were consistent with an injury as alleged in December 1987. He could not make an exact diagnosis other than what he would call "Spondylitis" or inflamed joints in the neck and back.

17. He expressed the opinion that it was likely that her condition was an exacerbation of previous problems. He also thought that apart from the fall, her posture with high heels, being tense for several reasons, and spending a lot of time on her feet were also contributing factors.

18. Returning to the evidence of the plaintiff, she said that she discontinued her employment as a real estate agent and commenced work at Gloria Marshall, a weight reducing business, in September 1988. She found the business of showing exercise machines too difficult and when she told her employer about her pain in the back, she was dismissed "on the spot". She returned to work as a real estate agent in the early part of 1989.

19. On 27 May 1989, she fell down the stairs fracturing her left ankle. She was treated for that injury by Dr David McNicol, orthopaedic specialist. She was in a short plaster for six weeks and returned to work as a real estate agent in August 1989.

20. On the 25 September 1989, she first consulted Dr Danta, neurologist. It seems clear on the evidence that the reason that she consulted Dr Danta was to do with her fractured ankle and generalised weakness and tiredness. After taking her history and examining the plaintiff, Dr Danta expressed the opinion that her generalised weakness and tiredness were due to chronic fatigue syndrome for which there was no satisfactory treatment. However, it was not long before the plaintiff was diagnosed, in October 1989, with having glandular fever. She was also diagnosed later on with having multiple sclerosis. This was diagnosed by Dr Colin Andrews, neurophysician, in March 1991. Additionally she was diagnosed with a meningioma, which was surgically removed by Dr R L Newcombe, neurosurgeon, on 27 June 1991.

21. The brain tumour was diagnosed at Royal Prince Alfred or Royal North Shore Hospital. The plaintiff was not certain of the actual hospital in Sydney. After its removal, she had no feeling down the left side of her face and an ulcer in the left eye which necessitated the wearing of a patch for six months. Also her short term memory disappeared and, according to the plaintiff, there has never been any improvement. It was in those circumstances that she saw Dr Newcombe again for pain in the neck, arm and shoulder. After a CT scan, he recommended surgery, which she had, to try to get rid of the pain.

22. She had remained under Dr Newcombe's care from June 1991. Later she gave him a history in January 1993 that five years earlier she had had a fall causing her neck injury and that this had caused neck pain for several months. He took a full history from her but at no stage did she mention that she had had neck problems prior to the chair incident on 21 December 1987.

23. On the basis of the history given, Dr Newcombe expressed the view that the fall from the chair had caused intervertebral disc disruption at the C5-6 level and that this disruption had progressed by May 1993 to the point where there was a prominent prolapse causing right arm pain. He thought that surgical decompression of the spinal cord and associated C6 nerve roots discectomy followed by interior interbody fusion was indicated.

24. He carried out that procedure at Calvary Hospital on 8 June 1993 and she was discharged on 18 June 1993. Subsequently, she had continued headache and neck pain with radiation of pain to the shoulder and right arm.

25. Dr Newcombe carried out further investigation which revealed forward displacement of the graft at C5-6 level and probable non-union. As a result, he re-operated on C5-6 level and also decompressed and performed an infusion at C6-7 level at Woden Valley Hospital on 2 September 1993.

26. Post operatively, her pain improved considerably, especially the right arm. Neck movements were increasing as at December 1994 and Dr Newcombe noted that the plaintiff was pleased with the outcome of the operation. He last saw her on 19 September 1994.

27. Dr Newcombe gave evidence on the plaintiff's behalf. He had never been told about the plaintiff's neck problems prior to the chair incident in December 1987. When asked to assume that she had had neck problems, he said in evidence that he would regard the chair incident as having caused an aggravation of the plaintiff's pre-existing neck condition, leading ultimately to the surgery which he performed on two occasions.

28. She said in evidence that she had the further operation by Dr Newcombe because the pain in her neck was worse. The second operation caused some slight improvement in the level of pain in the neck.

29. Dr Newcombe discussed with her having a third operation. Dr Chandran advised against it. She declined to have any further operation. In the meantime, her multiple sclerosis was being managed by Dr Tuck, neurologist.

30. Dr Tuck said in his report of 26 July 1995, that he had first seen the plaintiff on 24 March 1994 at the request of her local doctor for a second opinion about the advisability of treating her multiple sclerosis with a drug known as 'Cyclophosphomide'. After taking her history, Dr Tuck examined the plaintiff. He found that her mental status was normal, gait spastic and slightly unsteady, unable to walk tandem and he noted other findings. In particular, in the upper limbs he could find no spasticity or weakness. He expressed the opinion that pain in the right arm and neck was unlikely to be viewed as multiple sclerosis and might be the result of the injuries sustained in her accident.

31. As to prognosis, he said that her balance and walking were likely to slowly deteriorate and it was probable that the plaintiff would require a wheelchair eventually. He also said that her neck and arm pain were likely to continue indefinitely.

32. In addition to all that treatment, the plaintiff tried alternative medicine. From 15 May 1990 she consulted on a regular basis Barbara de Bryon-Faes who described herself in her report and in evidence as a "movement educator and a natural therapist". Her evidence was that the plaintiff presented with pain in both sides of her jaw and complained that she slept a lot. She gave as a history that she had had a whiplash injury years ago (caused in a road accident) and said that this did not result in any long-lasting signs or symptoms. She went on to describe also the broken ankle. She was extremely pain sensitive to touch all over her body with muscular contractions in many areas. The plaintiff continued to consult the therapist for the next four years and was still receiving treatment from her at the date of trial.

33. On 20 May 1992 the plaintiff first mentioned to the therapist that late in 1987 she had fallen through a chair and hurt her neck and back. The plaintiff said in evidence that she benefited greatly from the sessions with the therapist. Her headaches had been relieved and she proposed to continue with that therapy.

34. Over the years in which she had received therapy, the plaintiff complained consistently of pain, often very severe, in her neck, shoulders, arms and hands, the right one being more affected, and headaches nearly all the time which were often extremely intense.

35. At Dr Chandran's suggestion, the plaintiff decided to use a transcutaneous electrical nerve stimulator (TENS machine) for her neck and right shoulder pain. She consulted Lauma Dent, a physiotherapist, for that purpose. On 5 August 1994, after trialing the TENS, there was a decrease of pain at rest and on movement. The plaintiff took the TENS for a home trial and has continued to use it ever since. She wears it all the time except when she is sleeping. There was a difficulty about the use of the machine because it caused some skin problems, although the use of disposable electrodes tends to lessen this complication but they are more expensive.

36. In her evidence, the plaintiff complained of continuing pain in the neck, right arm and right shoulder, low back and left hip.

37. The issue in the case from a damages point of view is which complaints and to what extent are those complaints attributable to the accident with the chair in December 1987. She said that the physical symptoms she suffered after the 1976 motor vehicle accident had gone after one year or more. After that period she was not suffering from the neck or back symptoms.

38. The plaintiff claimed damages in this Court for the whiplash-type injury which she sustained in the 1976 motor vehicle accident. Her claim was settled on her recollection for something in the order of $12,000.00.

39. That evidence did not sit well with evidence tendered on behalf of the defendant, in particular the plaintiff's application to Dr Stathis, a chiropractor, dated 30 March 1987. That application executed by the plaintiff identified symptoms of lower back and neck problems as the conditions for which the plaintiff was consulting Dr Stathis. Furthermore, Dr Stathis' notes in evidence showed that over the next nine months the plaintiff consulted him for those problems on no less than 30 occasions up to the date of the chair incident. The notes show that on the day of the chair incident, when she consulted him, she made no complaint of neck pain. She complained of being sore all over, very bad headaches, dizzy, legs aching. Even on the consultations which followed immediately on 23 and 24 December 1987, 12 January 1988, 1 and 3 February 1988, there was no complaint of neck problems. When she consulted her general practitioner, Dr Gibson, to which I have referred earlier, on 9 February 1988 there were complaints of neck and back problems but her main problems were leg problems which Dr Gibson dealt with. The medical reports thereafter are concerned mainly with her legs and her multiple sclerosis.

40. I shall return to the defendant's submissions. The plaintiff was examined on behalf of the second defendant by Mr F E S Keiller, a consultant surgeon practising as a medico-legal consultant, on 28 June 1995. Mr Keiller's reports of 29 June 1995 and 22 July 1995 were in evidence and he also gave oral evidence.

41. In his first report, he set out the history obtained and the results of his examination of the plaintiff. As part of his opinion he then addressed the critical question of whether the plaintiff's continuing neck and back symptoms stemmed entirely from the incident in 1987. He said,

Dr Newcombe, who saw her four years ago, believes there is a connection. I would find it difficult to refute such an argument, unless there was strong evidence that she had significant problems prior to that date and following the first accident, and which required frequent visits to her doctor, and forms of treatment such as physiotherapy.

The other question would be whether she had significant degenerative changes in her spine at the time the chair collapsed.

No x-rays were available to show whether she had such degenerative changes then, or indeed that she has them now to any significant extent.

There are, therefore, too many variables for me to make any firm comment about the exact relationship of the fall from the chair and her problems in the cervical spine.

Certainly there was little to find on examination today, and I suspect that there is quite a strong emotional overlay.

She unfortunately suffers from MS which, in itself, may account for some of her symptoms.

If there is no significant evidence that she had ongoing problems from the time of the road accident until the fall from the chair, then I am inclined to attribute her continuing symptoms and her need for past surgery, as due to that incident.

The shoulder symptoms would seem to be due to progression of the neck problem.

42. By the time of his second report dated 22 July 1995, Mr Keiller had been provided with additional material including reports from Dr Danta, Dr Gibson and Dr Newcombe. Having seen that material, he said in his second report that prior to the chair incident the plaintiff appeared to have neck and back problems of some significance. He said these were due to degenerative disc disease and always liable to progression. Finding accurate assessment difficult, he went on to say,

However, on the balance of probabilities I believe her later requirement for neck surgery stemmed from a progression of the degenerative disc disease. Symptoms were aggravated by the fall for some months only, probably six at the most. It may have contributed to the further progress of the degenerative changes but given the long gap between the date of the fall and the exacerbation of her complaints with extension of symptoms to the right upper limb, I think it likely that contribution was only moderate. There is no scientific way of assessing this accurately but my suggestion would be no more than 20%.

43. When Mr Keiller gave evidence, counsel for the second defendant sought his evidence about whether the chair incident, or as it was called in the question "the fall from the lounge", was a cause of the need for surgical intervention in June 1993. For the purposes of the question, counsel asked the witness to make a number of assumptions. I set out the assumptions.

- The plaintiff began seeking chiropractic assistance on 30 March 1987, that is, six months before the chair collapsed;

- On the first day she presented, she indicated to the chiropractor that she wanted help for lower back and neck problems, headaches, tension, left sided and constant right arm pain which had dated over a period of 11 years following the whiplash incident in a motor vehicle accident in 1976;

- Over the nine months or so prior to the fall, she went on some 30 occasions to the chiropractor and on many of those occasions complained of, or had treatment to her cervical spine;

- Ten days prior to the event she attended complaining of stabbing pains, referring into her right leg and four days prior to that she had complained of difficulties in walking and also of neck and low back pain;

- On the day of the chair incident, she attended at the chiropractor saying she fell through a chair at work. She was sore all over, she had bad headaches and was dizzy and aching legs and a right shoulder problem. The chiropractor did not record any complaint of neck or back on the occasion of her attendance on the day of the accident.

- She attended two days later complaining of thoraco lumbar pain which was sore the previous evening, some dizziness, some morning right shoulder soreness.

- She then attended on 24 December complaining of left ear ache, pelvis discomfort, dizziness and headaches.

- She did not attend again until 12 January 1988 when her complaint was that her legs were not functioning properly and that she was very dizzy.

- Over the balance of her attendances during 1988, she had attendances with respect to her neck of similar frequency to the attendances she had prior to the fall from the chair.

- Her principal complaints were of difficulties with walking, feeling unsteady on her feet, not walking properly, feeling dizzy "like a drunk" to walk, walking awkwardly and the like.

- During that period she attended on a general practitioner, Dr Gibson, whose report Mr Keiller had seen.

- During the same period she was working as a real estate agent from April 1988 and also for Gloria Marshall Weight Loss Clinics and was in relatively consistent employment until a fall in May 1989 when she fell down stairs fracturing her left ankle.

- She had consulted in April 1989 Dr Chandran about low back discomfort but not about her neck.

- She was in a plaster cast between May 1989 and August 1989 when she returned to real estate work.

- In September 1989, she consulted Dr Danta, a neurologist, giving him a history of the chair fall and telling him that she had had a pain in the back of the knee for a couple of months which had settled and also pain in the neck and left shoulder and arm which also lasted a few months and then settled but that she had become aware of a weakness in her left leg which was slowly getting worse and essentially she was complaining to Dr Danta of left knee problems and she thought she noticed some wasting in her left thigh. She gave Dr Danta a history of 16 years previously having had an accident to her neck which had caused recurrent neck and back pain.

- She attended upon Dr Gavaghan, a consultant physician, on 7 March 1990. She was then complaining of a number of problems, mainly left knee weakness, although she also complained of some intermittent problems with her neck and lumbar spine which she attributed in her history to the doctor to the motor vehicle accident in 1976, making no mention of any chair incident.

- Her employment as a real estate agent was then compromised by a glandular fever condition.

- At about that time she began working as an AMP sub-agent but did not effectively get back to employment after the end of 1989.

- From that time, she went to a number of doctors in relation to a condition that subsequently was diagnosed as multiple sclerosis and she was also discovered to have a meningioma.

- In March 1991 she had surgery for the meningioma but no treatment in relation to her neck or back or any cause to complain of any worsening of symptoms other than recurrency until early 1992 when she presented to her general practitioner with a history of sudden and severe pain in the right shoulder which she attributed to a fall eight months earlier, that is, in May 1992.

- The right shoulder became severely worse in early 1993 and moved from the right scapular extending down the arm into the central figures suggesting a C7 nerve root problem to Dr Andrews when he assessed her.

- She was referred to Dr Newcombe and underwent surgery in June and September of 1993.

44. Before the witness was able to answer the question, objection was taken to the question by counsel for the plaintiff based upon the wording of Rules of Court O39 r47. No objection was taken to the factual assumptions which the witness was asked to make and they were substantially in accordance with the evidence. Eventually the witness answered the question, "I believe that that is now an unlikely direct connection". He was then asked in examination in chief whether or not any aggravation, whether symptomatic or otherwise occurred to the neck on the occasion of the fall through the chair. His answer was, "Yes. I think she probably did have some symptomatic aggravation at that time, but on that history I think it's unlikely that there was any severe structural damage added to the previous condition". He went on to say that he would have to revise his earlier reports. He said that it would seem that the progress of the condition was part of her degenerative process rather than structural damage at the time of the fall and therefore it seemed unlikely that there was any direct contribution of 20% in that estimate. Finally, he said in evidence in chief that it had become much less likely that there was any contribution to the end point at all.

45. The witness was cross-examined by counsel for the plaintiff but it is unnecessary to deal further with his evidence. I was impressed with Mr Keiller's evidence and I accept his opinions on the critical issues in the case.

46. Dr R L G Newcombe, neurologist, gave evidence on behalf of the plaintiff and his reports of 6 May 1993 and 19 December 1994 were in evidence. He had been consulted by the plaintiff first on 21 June 1991 having been referred by her general practitioner, Dr Turtle, in relation to her meningioma near the brain stem. She made other complaints at that first consultation, namely neck pain and Dr Newcombe noted that she had seen a chiropractor for that condition. He did not take a detailed history in relation to that at the time because the dominant condition was the meningioma.

47. As is apparent from his first report of 6 May 1993, from June 1991 until the date of the report, the plaintiff had not given him any history of injury to her neck in a motor vehicle accident in 1976. On the basis of the history given, Dr Newcombe expresses the opinion in the report that the fall from the chair caused intervertebral disc disruption at the C5-6 level. This disruption had progressed to the point that there was prominent prolapse causing right arm pain.

48. In the course of his oral evidence, Dr Newcombe was asked to assume that the plaintiff had been involved in a motor vehicle accident in 1976 following which she sought chiropractic treatment for amongst other things, neck pain for about eight or so months before the chair incident and saw the chiropractor on about 30 occasions in 1987. He was then asked for his opinion about whether the chair incident and the need for the cervical operations that he performed were related. He answered that the history of chiropractic treatment might cause for some alteration in his opinion about the primary causation. He said the motor vehicle accident might have done something to the neck that led to the subsequent disc prolapse and degeneration. On the material that he was asked to assume, he expressed the opinion that the plaintiff was suffering to some degree from cervical spondilosis before the fall, but the fall caused significant aggravation such that she could not work after that and that it was reasonable to think that it was a dominant factor in leading to subsequent events.

49. It was clear on Dr Newcombe's evidence that he never obtained any history from the plaintiff about injury to her neck in a 1976 motor vehicle accident or any treatment for neck symptoms prior to the chair incident in 1987. On balance, I do not think there is any difference of opinion between Mr Keiller and Dr Newcombe that the plaintiff was suffering from neck symptoms prior to the chair incident and that it is more probable than not that in that incident she further injured her neck which was already in a degenerative state.

50. The question which remains, and Dr Newcombe is of no assistance on this point, is for how long, if at all, the plaintiff suffered continuing symptoms in the neck as a result of the chair incident. Mr Keiller expressed the opinion that the contribution of the chair incident to the neck symptoms was merely transitory in the absence of any structural damage.

51. In the end result, I accept the submission on behalf of the second defendant that any distress or discomfort to the plaintiff as a result of the chair incident was of only temporary duration. The plaintiff has no contemporary corroboration of a neck problem associated with the chair incident. Dr Stathis, the chiropractor, has not noted any problem in the neck on the day of the accident. The evidence of the plaintiff's son was that she was complaining of pain in the back mainly and was slowing down in mobility due to her back.

52. I also accept the submission on behalf of the second defendant that the medical reports after the chair incident are concerned mostly with her legs and condition of multiple sclerosis. There is very little until years later about complaints of pain in the neck.

53. The plaintiff's case suffered somewhat from her problems with her memory which occurred after the brain surgery. However it is significant, in my view, that when she saw Dr Gytis Danta, neurosurgeon, on 25 September 1989 presenting with a weakness of the left leg, she told him that she fell when the chair she was sitting on collapsed in December 1987 and she hit the back of her left knee against the timber frame. She told him that she then had pain at the back of the knee for a couple of months after which it settled and she also had pain in the neck and left shoulder and arm which also lasted a few months and then settled. Thereafter she became aware of weakness of the left leg which slowly got worse and essentially she was complaining of her left knee giving way and noticing some wasting of the left thigh.

54. Dr Danta observed that she had symptoms of cervical spondilosis and degenerative lumbar disc disease present since her first accident 16 years before he saw her and that those symptoms seem to have been aggravated by the fall off the chair as well as other incidents. The specific injury in the incident in December 1987 was the left knee injury.

55. Likewise, in her consultations with Dr Chandran from April 1989 the focus was on her legs. The leg complaint was paramount and she also made mention of long standing neck and back pain. Nowhere did she tell any treating doctor or other paramedical professional that she had a bad injury to her neck in the chair accident.

56. The plaintiff was not a very satisfactory witness. She was unreliable in her memory and I accept that this was a genuine inability to recollect but it made it all the more difficult to be satisfied of any causal connection between the chair incident and her subsequent incapacity and operative treatment for the neck condition.

57. I am satisfied on the balance of probabilities that the chair incident caused some temporary aggravation of but a few months of her pre-existing cervical spondilosis.

58. It was urged on behalf of the plaintiff that her injuries were not confined to the neck and that they included injuries to the left leg and lower back. Notwithstanding the evidence of the plaintiff that she was fit before the accident and the evidence of her son of a significant change in the levels of her capacity, I am not persuaded that any injuries to the left leg or lower back sustained in the chair accident were the cause of her on-going disability.

59. On the limited basis of the claim for pain and suffering and loss of enjoyment of life for a few months and all the other matters which the Court must take into account on general damages, I assess the sum of $15,000.00 for general damages.

60. There was a claim for past economic loss. The evidence was that the plaintiff's business was running at a loss at the relevant time and that the plaintiff removed herself from a business which was losing money to a more onerous job. Again I am not persuaded that the closure of the business for a two week period after the accident and in the first part of the 1988 year was any more than the normal closure of businesses which takes place in the Australian Capital Territory over the Christmas and New Year period. I am not persuaded that the plaintiff has demonstrated any economic loss flowing from the chair accident. In any event, her incapacity for work which arose later was no doubt due to her multiple sclerosis and other conditions such as the broken ankle.

61. I turn to the claim for out-of-pocket expenses which was itemised in an exhibit. The total claim was for $39,804.40. Having regard to my conclusions about the nature of the injuries sustained and the consequences thereof in the chair accident, the only out-of-pocket expenses which in my view are recoverable, are Dr Gibson's fees in 1988 and Dr Stathis' chiropractic treatments during 1988. The amount claimed for Dr Gibson is $193.45. I am prepared to allow that amount. The amount claimed for Chiropractic Health Services, Dr Theony Stathis, up to 13 April 1989 is $544.00. All those treatments are described as being for spinal adjustment. I am prepared to allow that amount and I think that is generous to the plaintiff.

62. It is unnecessary to refer to the other out-of-pocket expenses which I am not prepared to allow except that of Barbara de Bryon-Faes. Her fees total over $15,000.00. In my view they were not fees incurred for treatment of any condition caused by the subject accident. It may even be that they were fees incurred for treatment which had no medical worth but it is unnecessary for me to decide that matter. Plainly the treatment, and there have been an enormous number of consultations over a period of four years, was not for any condition caused by the chair accident.

63. The only other matter which needs to be addressed is the claim for past and future economic loss. As to the past, it was submitted on behalf of the plaintiff that during the period of incapacity, she had the capacity to earn at a rate of not less than a shop assistant. That may well be so but in my view the fact that the business was running at a loss and the fact that she was choosing to continue to conduct the business at a loss precludes her from successfully claiming any amount for past economic loss.

64. As to the future, it was submitted that I should accept her evidence that, if she could get a wheelchair and an indulgent employer, she could work to the age of 65 years and that she has done a computer course to equip herself for such a job.

65. Due to conditions unrelated to the chair accident, she is totally incapacitated. One need go no further than to consider the opinion of Dr Peter Slezak in his report of 16 April 1997 where he said that assuming the plaintiff had never had any of the "accidents", the symptoms referable to the multiple sclerosis namely, impaired balance, urinary and frequal urgency, upper limp clumsiness, would very likely preclude her from being gainfully employed. In the end, I am not persuaded that the plaintiff has made any case for damages for future economic loss.

66. In summary, therefore, my assessments are,

General damages $15,000.00 Out-of-pocket expenses, Dr Gibson $193.45 Chiropractic Health Services $544.00 $ 737.45

Total $15,737.45

67. Having considered that total sum as a global sum, I confirm my provisional assessments and enter judgment for the plaintiff for $15,737.45.

68. I shall hear counsel on the question of costs.